Comm'r of Envtl. Prot. v. Farricielli

• Decision Date: 19 February 2013
• Docket Number: SC 18596
• Court: Supreme Court of Connecticut
• Parties: COMMISSIONER OF ENVIRONMENTAL PROTECTION ET AL. v. JOSEPH J. FARRICIELLI ET AL.

COMMISSIONER OF ENVIRONMENTAL PROTECTION ET AL. v. JOSEPH J. FARRICIELLI ET AL.

SC 18596

Supreme Court of Connecticut

Argued October 31, 2012

Officially released February 19, 2013

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the "officially released" date appearing in the opinion. In no event will any such motions be accepted before the "officially released" date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Harper, Js.^*

Kenneth A. Votre, for the plaintiff in error (Modern Materials Corporation).

Kimberly P. Massicotte, assistant attorney general, with whom were Matthew I. Levine, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Krista E. Trousdale, assistant attorney general, for the defendant in error (commissioner of environmental protection).

Opinion

NORCOTT, J. This is the latest chapter in the efforts of the plaintiffs, including the named plaintiff and defendant in error, the commissioner of environmental protection (commissioner),¹ to close and remediate an area commonly known as the "tire pond," a solid waste disposal area straddling the Hamden and North Haven town boundaries that is on land owned by the defendants, Joseph Farricielli and various corporate entities that he owns or controls (corporations).² The nonparty plaintiff in error, Modern Materials Corporation (Modern), which conducts its business on land leased from State Five Industrial Park, Inc. (State Five), that contains a portion of the tire pond, brings this writ of error³ from the judgment of the trial court ordering it to vacate that land in order to effectuate the environmental remediation that the trial court had ordered in the action underlying this writ of error (underlying action). Modern contends that the trial court improperly ordered it to vacate because: (1) the trial court lacked the authority to enforce the injunctions ordered in the underlying action against Modern because it has never been a party to that action or acted in privity with a party thereto; (2) such an order was not necessary to effectuate the remediation; and (3) the trial court violated Modern's due process rights under the federal and state constitutions when it enforced the orders in the underlying action without first giving Modern the opportunity to contest the validity of those orders at a hearing. We disagree and, accordingly, dismiss the writ of error.

The record, as described in part by our previous opinions in various appeals concerning the tire pond, reveals the following background facts and procedural history. Farricielli "and his corporations own four contiguous parcels of property, three of which are located in the town of Hamden and one in the town of North Haven [parcels]. The parcels are bordered by the Quinnipiac River on the east and by State Street on the west. Tidal marshes abut the properties to the north and south, and two of the parcels contain ponds. One of the ponds, which is known as the ['tire pond'] because [Farricielli] and his corporations used it for the unauthorized disposal of approximately 15 million used tires, is separated from the Quinnipiac River and adjoining marshlands by a narrow dike. Since the 1970s, [Farricielli] and his corporations maintained various solid waste disposal operations on these properties, and, on occasion, leased the parcels to other businesses for similar uses. [Farricielli's] corporations and his various tenants used the land for, among other things, the sorting, recycling, reduction and disposal of construction and demolition waste, pumice, used tires and other refuse. One tenant operated a landfill on one of the parcels, and [Farricielli] and his corporations maintained offices and scales on another of the parcels." Rocque v. Farri-cielli, 269 Conn. 187, 192, 848 A.2d 1206 (2004).

"Beginning as early as 1974, the plaintiffs in this case became concerned over the unauthorized and otherwise illegal activities of [Farricielli], his corporations and his tenants.⁴ Several attempts were made to bring [Farricielli], his corporations and tenants into compliance with state statutes and town ordinances, which, among other things, required [Farricielli] and his corporations to secure the appropriate permits and to abide by their requirements. In December, 1995, [Hamden] obtained a temporary injunction against [Farricielli] and his corporations, and it was on this order that the stipulated judgment involved in this case was based. In March, 1999, [Hamden] obtained a cease and desist order, which it also requested the court to enforce in the present case.

"In February, 1998, the commissioner issued a consent order designed to go into effect on May 28, 1998, which was signed by [Farricielli] on behalf of himself individually and on behalf of his corporations [consent order]. Simply stated, the consent order required [Farri-cielli] and his corporations to cease the operation of all unpermitted solid waste facilities and to remediate the tire pond. Their subsequent failure to comply adequately, or, in some cases, at all, with the terms of the consent order, along with the violation of the stipulated judgment and the cease and desist order obtained by [Hamden], constitute the basis of [the underlying action]." Id., 192-94.

The commissioner commenced the underlying action on July 9, 1999, by filing "a complaint, which subsequently was amended four times, against [Farricielli] and his corporations alleging flagrant and persistent violations of General Statutes §§ 22a-44 (b), 22a-108, 22a-208a, 22a-208b, 22a-208c and 22a-430, concerning the operation of their unpermitted solid waste disposal areas. Specifically, the commissioner sought: an order from the trial court enforcing the terms of the commissioner's 1998 consent order with [Farricielli] and his corporations, which was designed to end ongoing statutory violations; a temporary and permanent injunction requiring [Farricielli] and his corporations to cease their illegal activities; and an order requiring [Farricielli] and his corporations to pay civil penalties for each day of each alleged violation. The town and its zoning enforcement officer subsequently intervened as party plaintiffs in the action, and the plaintiffs filed a joint amended complaint seeking, in addition to all of the aforementioned remedies, enforcement of an existing cease and desist order and the stipulated judgment in effect between [Hamden] and [Farricielli] and his corporations, which was designed to end ongoing violations of various zoning ordinances." Id., 191-92.

"Following a lengthy court trial [before Hon. Robert Hale, judge trial referee]⁵ and the filing of posthearingbriefs, the trial court found for the plaintiffs on all counts and ordered [Farricielli] to comply with the terms of the consent order, the stipulated judgment, and the cease and desist order, and to pay civil penalties for his ongoing violations of state and local laws [2001 judgment]. [Farricielli] subsequently filed motions for reargument and for a stay of the injunctions ordered by the court pending an appeal, both of which were denied."⁶ Id., 194. This court affirmed the underlying judgment in an opinion released on June 1, 2004. Id., 190-91.

With respect to the three specific parcels of the defendants' land at issue herein, known as parcels A, B and C, the tire pond is located on parcel B, which lies in both North Haven and Hamden, and which is bordered on the east by the Quinnipiac River and on the west by State Street. Parcel A lies south of parcel B and is entirely in Hamden. Parcel C, which is located between parcels A and B, is a narrow strip that lies entirely in Hamden. Parcel C is owned by State Five, who, in turn, received its interest in that parcel from its corporate predecessor, Look Investment Agency, Inc. (Look). In February, 2000, Farricielli, through one of his corporations, the defendant Tire Salvage, Inc. (Tire Salvage), conveyed a 6.8 acre strip of land in the southern portion of the tire pond on parcel B to Look, causing it to become part of parcel C.⁷ Further, in June, 2003, Farri-cielli licensed a three acre portion of the tire pond in parcel B to Look for the sum of $1 (license agreement).

Modern became involved with this property in June, 2003, while the appeal to this court in the underlying action was pending. Specifically, on June 11,2003, State Five leased the 6.8 acre strip on parcel C to Modern for an initial five year plus seven month term, ending on February 28, 2009. The lease also included a five year renewal option, which Modern since has exercised. Modern subsequently recorded this lease on the Hamden land records pursuant to General Statutes § 47-19.⁸ State Five also assigned to Modern a portion of the license agreement, thus permitting Modern to occupy the three...